Carol Gaal v. BJC Health System, d/b/a BJC Healthcare

Citation: Not availableDocket: ED107045

Court: Missouri Court of Appeals; December 9, 2019; Missouri; State Appellate Court

Original Court Document: View Document

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Carol Gaal appeals the judgment from the Circuit Court of the City of St. Louis favoring BJC Health System in her wrongful discharge lawsuit, claiming violations under the Missouri Human Rights Act (MHRA) related to disability discrimination and retaliation. Gaal contends four errors: the trial court's submission of BJC's jury instructions instead of her own, denial of her motion in limine, and BJC's use of video deposition clips during closing arguments. Gaal was employed by BJC as a senior accountant from 2006 until her termination on August 15, 2014. She alleged that her chronic asthma, for which she had taken Family Medical Leave Act (FMLA) leave, was a significant factor in her termination (Count I), and that her firing was retaliatory for filing discrimination charges with the Missouri Human Rights Commission and the Equal Employment Opportunity Commission (Count II). 

She sought damages for lost wages, benefits, and emotional distress. Trial evidence included testimony from Dr. Jeffery Tillinghast, who diagnosed Gaal with mild persistent asthma but indicated her condition was well-controlled and did not substantially limit her activities. Gaal reported that her asthma was exacerbated by various environmental factors and stress. In March 2012, after experiencing stress from an office relocation, she communicated potential attendance issues to HR and subsequently took approved FMLA leave. Despite a negative examination record, Gaal disputed its accuracy. Her asthma intensified in the winter of 2013-2014, affecting her attendance during a busy work period. The appellate court affirmed the trial court's judgment, ruling in favor of BJC.

On January 11, Gaal informed her manager, Valerie Gray, that she would be late to work due to a burst pipe. Gray reacted angrily, instructing Gaal not to come in and labeling her absence a no-show. Gaal later testified that her absences were affected by weather-related issues impacting her asthma, but she acknowledged she did not communicate this to her employer at the time. Instead, she cited snow as the reason for her Tuesday absence, shoveling for her Thursday tardiness, and the pipe issue for Saturday. Gaal did not apply for Family and Medical Leave Act (FMLA) leave until May, after receiving disciplinary action due to excessive tardiness and poor performance.

On January 17, 2014, Gaal was placed on a performance improvement plan (PIP) for lack of responsibility and poor customer service, with client feedback indicating she was competent but often abrasive and rude. During discussions about her PIP, Gaal mentioned her asthma as a disability but was told by Gray that this was irrelevant, as evidenced by her ability to run marathons. Following the PIP, Gaal improved her punctuality despite ongoing winter weather.

Gaal had a history of performance issues, having received a previous PIP in 2009 and a below-average performance rating in 2010 due to tardiness and poor relations with colleagues. In April 2014, she was denied a raise due to being on a PIP. She later requested FMLA leave, which was backdated to January 2014 but denied, although intermittent FMLA was granted moving forward; Gaal did not utilize this leave.

On June 19, 2014, Gaal filed a complaint with the MCHR, alleging discrimination based on her disability in relation to the PIP and FMLA denial. HR Director Marlene Jones testified that while employees cannot be disciplined for taking FMLA leave, they can be for poor performance. Despite improved attendance, Gaal's behavior remained disruptive, leading to a recommendation for her termination on July 3, 2014, due to client complaints and co-worker requests to avoid working with her.

Gaal's employment was terminated by Jones on August 15, 2014, due to her refusal to assist colleagues, lack of teamwork, and marginal performance, despite her attendance not being an issue and her FMLA leave or asthma not influencing the decision. Gaal had filed a complaint with the MCHR by August 15, but Jones asserted that this did not impact her termination decision. The jury ruled in favor of BJC regarding Gaal’s claims of disability discrimination and retaliation under the MHRA. In her appeal, Gaal contends that the trial court erred by submitting BJC's verdict directing Instruction No. 6 on disability discrimination instead of her proposed instruction under MAI 38.01(B), claiming it wrongly limited her ability to demonstrate all potential definitions of disability supported by trial evidence. The court reviews instructional errors de novo, requiring substantial evidence to support jury instructions and proof of prejudice for a successful claim of instructional error. The relevant law under Section 213.055.1(a) prohibits discharging an employee due to disability, as defined by Section 213.010(4), which includes physical or mental impairments that substantially limit major life activities. The trial court must utilize Missouri Approved Instructions if applicable.

MAI 38.01(B) provides the jury instructions for cases alleging employment discrimination under the Missouri Human Rights Act (MHRA) due to disability for actions prior to August 28, 2017. The instruction outlines that a plaintiff must prove: 1) they have a physical or mental impairment that substantially limits one or more major life activities or are regarded as having such an impairment; 2) the impairment does not interfere with job performance when reasonable accommodation is provided; 3) the defendant engaged in a discriminatory act (e.g., failed to hire or discharged the plaintiff); 4) the disability was a contributing factor in the discriminatory act; and 5) the plaintiff suffered damage as a direct result.

In this case, Gaal argued that her evidence supported all three definitions of being disabled. However, BJC’s verdict director only included the first definition. The court accepted BJC’s director, leading Gaal to claim error. The record revealed Gaal testified her ability to run marathons was used by BJC to challenge her disability claim, contradicting her assertion that BJC regarded her as having a disability. Gaal’s theory involved asthma limiting her major life activities, but the evidence did not support her claim that BJC perceived her condition as significantly impacting her abilities.

Furthermore, Gaal's argument that BJC’s approval of her FMLA leave indicated they regarded her as disabled was dismissed, as FMLA eligibility does not equate to a disability under MHRA. The definitions for FMLA and MHRA differ, and approval of leave alone does not demonstrate that BJC recognized her as disabled. Ultimately, the record failed to substantiate that Gaal had a physical impairment that substantially affected a major life activity, regardless of the FMLA leave approvals.

Gaal's asthma diagnosis does not automatically qualify as a disability under the Missouri Human Rights Act (MHRA). To establish a disability, there must be evidence of a physical impairment that significantly limits a major life activity. Gaal failed to provide sufficient evidence of such limitations. Dr. Tillinghast did not impose work restrictions on her despite her mild persistent asthma diagnosis, noting her asthma was well controlled and she had excellent lung function. Gaal's claims of significant limitations in breathing and walking were contradicted by her ability to run races and her asthma requiring emergency treatment only once since 2011. Although she was approved for intermittent FMLA leave in 2014, she did not utilize it. Consequently, Gaal could not demonstrate a physical impairment that substantially affected a major life activity, and the trial court correctly submitted BJC’s verdict director rather than Gaal's.

In her appeal, Gaal contended that the trial court erred by submitting BJC's Instruction No. 6, which omitted language regarding reasonable accommodation of intermittent FMLA leave. However, BJC argued that Gaal did not preserve this issue for appeal as she failed to object during the instruction conference regarding the exclusion of the reasonable accommodation language. Rule 70.03 mandates specific objections during the conference, and Gaal did not raise the issue as required. Her assertion that previous objections preserved her current challenge was insufficient, as any appeal must adhere to the original grounds stated at trial. Thus, Gaal's failure to object at trial led to a waiver of her challenge, and her arguments on appeal were denied.

Gaal argues that the trial court erred in submitting Jury Instruction No. 6, claiming it did not adequately address whether discriminatory conduct contributed to her damages, as required by MAI 19.01. The court disagrees, asserting that Rule 70.02(b) mandates the use of applicable Missouri Approved Instructions. MAI 19.01 applies to cases with multiple causes of damage but does not pertain to emotional distress as a separate cause. Gaal contended that her emotional distress constituted a distinct cause warranting the MAI 19.01 modification; however, this is not legally supported, as emotional distress is classified as a type of damage, not a cause. 

The court noted that Gaal's assertion of BJC’s discriminatory discipline as an alternate cause of damage lacks record support. Although she vaguely suggested there could be other contributing factors, this was insufficient to preserve the issue for appeal. The trial court had clarified that the only recognized cause of damage was Gaal’s discharge, which Gaal did not contest during the trial. The court provided Gaal two opportunities to object to this characterization, but she did not do so, thereby undermining her appeal argument that she had raised alternate causes of damage. Furthermore, Gaal's claims regarding BJC's alleged discriminatory actions were not presented in the trial, further deviating from her assertions on appeal.

Gaal's proposed instruction identified discharge as the sole cause of her damages, preventing her from claiming error regarding the trial court's failure to submit the MAI 19.01 modification, which is applicable only when multiple causes of damage exist. Appellate courts do not reverse trial court decisions based on invited errors, as established in *Matter of Care and Treatment of George v. State*. A party cannot complain on appeal about errors stemming from an incorrect instruction it submitted. Gaal is limited to review based on the damage cause she articulated in the trial court. The court did not err in refusing Gaal's instruction that incorporated the MAI 19.01 modification and instead used BJC's Instruction No. 6.

In her second appeal point, Gaal contended that the trial court incorrectly instructed the jury with BJC's verdict director on her retaliation claim and ignored her proposed verdict director modified by MAI 19.01. Gaal argued this misapplication limited her ability to demonstrate that retaliation contributed to her discharge, which she claimed had multiple causes. However, BJC contested whether Gaal preserved this issue for appeal, as she failed to object to the instruction on the same grounds at trial, in accordance with Rule 70.03. Despite this, the court reviewed Gaal's appeal due to potential confusion from the trial court's mischaracterization during the instructional conference. 

Upon review, the trial court did not err in using BJC's Instruction No. 9 for the retaliation claim without the MAI 19.01 modification, as there was no evidence presented indicating multiple causes of damage. Gaal’s discharge was identified as the sole cause, and while emotional distress was mentioned, it is classified as a type of damage rather than a cause. The trial court's instruction was supported by substantial evidence, leading to the denial of Point II.

Gaal contends that the trial court incorrectly provided both “true converse” and “affirmative converse” instructions (Instructions Nos. 7 and 8 for her disability discrimination claim, and Nos. 10 and 11 for her retaliation claim), arguing that such dual instructions are improper under MAI 33.01, which permits only one converse instruction per verdict directing instruction. The court disagrees with Gaal, noting that while a defendant is entitled to one converse instruction corresponding to each of the plaintiff's instructions, if the defendant presents an affirmative defense, both types of instructions may be warranted. Under MAI 33.01, a true converse instruction requires mimicking the plaintiff's language, while an affirmative converse instruction posits a scenario that, if proven, would negate the plaintiff's claim. MAI 38.02 allows for a lawful justification instruction in employment discrimination cases, provided it is supported by evidence. In this case, BJC submitted true converse instructions and a lawful justification instruction, which were deemed appropriate given the evidence suggesting BJC terminated Gaal based on its belief that she violated customer service expectations and alienated coworkers, without her disability being a contributing factor.

Gaal received two Performance Improvement Plans (PIPs) and a below-average performance rating since 2009 due to ongoing issues with client and colleague communication, leading to a client's request for reassignment from her. Despite counseling, Gaal's inappropriate and disruptive behavior persisted, including refusing work assignments. Although she contested BJC's lawful justification defense, the trial court had enough evidence to present this defense to the jury, and it properly issued both defense and converse instructions. 

Gaal also claimed the trial court erred in allowing BJC to present evidence of other employees granted FMLA leave, arguing it was irrelevant to her disability discrimination claim and prejudiced her case. However, because she did not object to this evidence at trial, the issue was not preserved for appeal, and her request for plain error review was denied. The trial court's ruling on the motion in limine was subject to change, and Gaal's counsel chose not to object during the trial as part of their strategy. Consequently, the appellate court declined to address claims of error that were intentionally abandoned.

Gaal contends that the trial court abused its discretion by permitting BJC to present a two-minute clip from Dr. Tillinghast’s videotaped deposition during closing arguments. She argues this constituted a misapplication of the law, unfairly emphasized edited testimony, and failed to provide the jury with a cautionary instruction, leading to prejudice against her claim of disability. The court, however, notes that both parties have broad discretion in their closing arguments and that it reviews objections for abuse of discretion. 

BJC informed the court of its intent to use the clip prior to closing arguments, leading Gaal to object on the grounds of unfairness and improper practice. The trial court overruled her objection. Gaal’s argument regarding the trial court's duty to review the video segments was not raised during the trial and is thus waived on appeal, as appellate points must align with objections made at trial. The court emphasizes that closing argument comments are permissible as long as they do not exceed the evidence or the issues presented. Since the video deposition had already been admitted during the trial and BJC did not misstate evidence, the court found no error in allowing the video during closing arguments.

Gaal's request for the Court to rely on precedents from Kentucky and New Jersey is dismissed, as sufficient Missouri law exists to address the matter at hand. Gaal's assertion that edited video segments from BJC were unduly persuasive in undermining her claim that asthma constituted a disability is rejected. The Court references Will v. Pepose Vision Inst. P.C., emphasizing that the purpose of closing arguments is to persuade the jury based on presented evidence. Gaal had the opportunity to counter BJC’s arguments in her closing remarks, which the jury ultimately found less convincing. The trial court's decision to allow BJC to present relevant video deposition excerpts in its closing argument is upheld, and the trial court's judgment is affirmed. Judges Ransom, Dowd, and Gaertner concur.